Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Owensboro Metropolitan Planning Commission properly denied the open records request of Michael K. Alexieff, City Editor, Owensboro Messenger-Inquirer, for a "copy of the report regarding Commissioner Mike Armstrong prepared for the Owensboro Metropolitan Planning Commission by the Owensboro-Daviess County Ethics Board."
Rick Hobgood, Chairman, Owensboro Metropolitan Planning Commission (OMPC), denied Mr. Alexieff's request, stating:
The Owensboro Daviess County Ethics Board issued the opinion to the Owensboro Metropolitan Planning Commission as a confidential advisory opinion which disclosure requires official action by the Owensboro Metropolitan Planning Commission. The OMPC at public hearing held September 9, 1999, voted unanimously not to release this opinion. The OMPC is denying your request under the provisions of KRS 61.878(1)(a) that provides:
The report having been declared confidential, the information supporting this exemption cannot be disclosed.
The OMPC takes the position that this opinion is also exempt under the provisions of KRS [61.878(1)](k) and KRS 61.878(1) The opinion being a confidential advisory opinion by the ethics board is exempt under the provisions of the above referred statutes.
Ralph W. Wible, attorney, on behalf of the Owensboro Messenger-Inquirer, appealed the OMPC's denial to the Attorney General. By way of background, Mr. Wible explained:
The matter arose because a disappointed party, who had opposed a zoning request made by the Independence Bank, claimed that a member of the OMPC, named Mike Armstrong, should not have voted on a zoning request by the Independence Bank because of his business relationship with the Bank.
The OMPC referred this contention to the Owensboro-Daviess County Ethics Board, which was established by joint ordinances of Owensboro and Daviess County pursuant to KRS 65.003. The Ethics Board announced that it had rendered an opinion to the OMPC. The Owensboro Messenger-Inquirer then sent a formal open records request to the chairman of the OMPC. A copy is attached hereto as Exhibit A. By letter of September 20, the OMPC refused the request to produce the Ethics Board opinion. A copy is attached as Exhibit B. . . .
In support of his position that the OMPC improperly withheld disclosure of the Ethics Board's opinion, Mr. Wible, argues, in part:
The OMPC did not discuss the nature of the information and did not say why it was of the type in which the public would have little or no legitimate interest. We can only assume that it contended that the information involved a disclosure of Mr. Armstrong's financial affairs and that this was not of interest to the public. However, the legislature has declared in enacting KRS 65.003(3)(d) that the financial affairs of a public official are matters in which the public has a legitimate interest. Elected and appointed officials have an obligation to make full disclosure of their financial dealings with a party, who might seek redress from an administrative board on which the official sits. To deny this information is to plant the seeds of public suspicion of secrecy and back room deals. The very purpose of the open records law is to encourage confidence in governmental processes by the "free and open examination of public records. " KRS 61.871.
After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Stewart B. Elliot, attorney for the OMPC, provided this office with a response to the issues raised in the appeal. In his response, Mr. Elliot elaborated on Mr. Hobgood's denial letter. Addressing first the OMPC's denial under authority of KRS 61.878(1)(a), Mr. Elliott argued:
The letter did not specifically set forth the basis and what constituted "clearly unwarranted invasion of personal privacy" , because the report was classified as confidential and to set forth reasons for claiming said exemption would violate the confidentiality of the report. The report contained personal information regarding Commissioner Mike Armstrong's financial and personal business obligations with applicant/bank who applied for the rezoning. The OMPC to argue in support of this exemption would violate the confidentiality of this report.
In addition, Mr. Elliott explained the OMPC's position for withholding the Ethics Board's opinion under authority of KRS 61.878(1)(k) and (l). In this regard, Mr. Stewart stated:
The City of Owensboro and Daviess County adopted the Ethics Code by joint ordinance which became effective on December 28, 1994 and adopted two subsequent amendments which became effective on March 1, 1995 and September 25, 1996. The joint ordinance was mandated by the Kentucky General Assembly enacted July 15, 1995. This statute mandated the adoption of the ethics code and directed the enforcement and application of the ethics code and regulation and joint ordinance under K.R.S. 61.878[1](a) and (k) would qualify as a regulation. This section does not specifically state a federal regulation but any regulation enacted by legislators would qualify. The provisions of the joint ordinance under Article IV, Section 8(B) state:
The Opinion rendered was an advisory opinion confidentiality of which was not waived by the requestor, OMPC, and therefore would remain confidential unless under Article IV, Section 8(a)(2) by majority vote of members of the Board--the board may vote to make public the advisory opinion requested and related materials. The OMPC at public hearing held September 9, 1999 unanimously had voted to keep the advisory opinion confidential under the Intracounty code of ethics, the ethics code being a regulation to the OMPC which related to the exemption.
In support of the argument that the report was exempt from disclosure under KRS 61.878(1)(k) and (l) and the ordinance, Mr. Elliott stated:
The confidential advisory opinion was designated as such in the opinion and without disclosing factual finding and conclusion of the report. Reference is made to Paragraph M, Confidentiality of Opinion:
The opinion being a confidential advisory opinion by ordinance mandated by the General Assembly qualifies for an exemption under the provisions in the statutes. A copy of the Ethics Code Intracounty code can be furnished upon request.
We are asked to determine whether the OMPC's denial of Mr. Alexieff's request for a copy of the Ethics Board's opinion was proper. For the reasons set forth below, and on the specific facts of this appeal, we conclude that the OMPC improperly denied his request.
We address each of the arguments advanced by the OMPC, beginning with its argument that those records are excluded from public inspection by operation of KRS 61.878(1)(a). That statute excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof in sustaining its action imposed on the agency under KRS 61.880(2)(c). 99-ORD-72. Although OMPC identifies the general nature of the information withheld, i.e., personal finances and business obligations of Commissioner Armstrong with the applicant bank, it does not explain how disclosure of this information would constitute a clearly unwarranted invasion of personal privacy, justifying a denial of access to the Ethics Board's opinion in its entirety.
The courts have developed a two part analysis for determining the propriety of an agency's invocation of this exception. In
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 828 (1995), the Court of Appeals adopted the test first set forth by the
Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, (1992):
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests involved, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act." Zink at 828. "The purpose of disclosure, " the court continued, "focuses on the citizens' right to be informed as to what their government is doing." Id. Disclosure of records which do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
The OMPC, in its response to the letter of appeal, indicated that the Ethics Board's opinion contained personal information regarding Mike Armstrong's financial and personal business obligations with the bank that had applied for the rezoning. A person's personal finances and business obligations are generally considered information of a personal nature to which a person has a cognizable privacy interest. See 92-ORD-1238; OAG 82-275.
Having found the existence of a cognizable privacy interest in the information, we proceed to the second part of our analysis to determine whether an invasion of privacy is nonetheless warranted because the public interest in disclosure outweighs the privacy interest. In Board of Examiners, supra, the court articulated the following standard for determining if a record may properly be excluded from inspection pursuant to KRS 61.878(1)(a):
Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Board of Examiners at 327-328.
The Ethics Board's opinion, prepared at the request of the OMPC, was to determine whether Commissioner Armstrong, due to his business relationship with the applicant bank, was in violation of the ethics code for his participation and voting on the bank's rezoning proposal.
Under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the agency's response, we requested the Commission to provide this office with a copy of the Ethics Board's opinion so that we could make an in camera review of that document. Pursuant to KRS 61.880(2)(c), we acknowledged our obligation not to disclose the contents of the document, which is the subject of this appeal.
We have examined the Ethics Board's opinion. As noted above, we cannot disclose the contents of the opinion. However, we can provide a general description of the record in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record.
To summarize generally, the Board found that Commissioner Armstrong had no actual direct or indirect conflict of interest which violated the Ethics Code as a result of business loans he received from an affiliate of the applicant bank appearing before the Commission and upon which rezoning application he voted. The Board further found that there was no evidence that the loans were solicited, offered, or accepted to influence his decision or vote on the zoning matter. However, the Board did find that there was an apparent conflict of interest. The Board found that, even though there was no direct or indirect financial or personal involvement in the zoning application of the bank, a reasonable person, being aware of the relationship between the applicant bank, the affiliate bank, and the financial debtor-creditor relationship between the public official and the affiliate bank, could question the Commissioner's impartiality or assume that his decision might have been influenced because of the loans. Information as to the nature and amount of the loans was included in the Board's opinion.
Information relative to Commissioner Armstrong's financial and personal business obligations with the applicant bank go to the very essence of the ethical question as to whether there existed a conflict of interest which would impact on his participation in the rezoning application. Accordingly, we conclude that this information, and the opinion in its entirety, should be disclosed to Mr. Alexieff and the public.
The public interest to be served by disclosure of this information would be to inform the citizens as to what their government is doing. It would expose for the public's scrutiny the nature of the relationship between a Commissioner of the OMPC and a zoning applicant; how the OMPC handles its rezoning responsibilities; and how the Ethics Board addressed the conflict of interest question. We conclude that the public interest in disclosure of the Ethics Board's opinion outweighs any privacy interests that Commissioner Armstrong may have in his personal finances as they relate to his business relationship with the applicant bank.
Disclosure of the nature of the personal finances and business relationship between Commissioner Armstrong and the applicant bank, in our view, would not constitute an unwarranted invasion of personal privacy in light of the superior and compelling public interest to be served by disclosure of the information.
Thus it is the decision of this office that the OMPC failed to meet its burden of proof of establishing that disclosure of this information would be an unwarranted invasion of personal privacy and improperly relied upon KRS 61.878(1)(a) in denying access to the Ethics Board's opinion.
We next address OMPC's argument that the Ethics Board's opinion is confidential and not subject to disclosure under KRS 61.878(1)(k) and (l).
KRS 61.878(1)(k) authorizes public agencies to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation. " OMPC argues that the City of Owensboro and the Daviess County Ethics Code, adopted by joint ordinance, would qualify as a regulation under KRS 61.878(1)(k) and that the Ethics Board's opinion would be confidential under a provision of the ordinance that advisory opinions remain confidential unless waived by the requestor or unanimous decision by the commission.
The OMPC's argument in this regard is misplaced. KRS 61.878(1)(k) applies only to records the disclosure of which is prohibited by federal law or federal regulation. The agency improperly denied access to the Ethics Board's opinion under KRS 61.878(1)(k).
Finally, we consider OMPC's reliance upon KRS 61.878(1)(l) as authority for withholding disclosure of the ethics opinion. KRS 61.878(1)(l) exempts from disclosure:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
OMPC argues the joint ordinance provides authority to withhold disclosure of the ethics opinion. Specifically, the agency cites Article IV, Section 8(B) of the joint ordinance, which provides for advisory opinions by the Ethics Board, which shall remain confidential unless the confidentiality is waived by the requester. OMPC points to no state statute that prohibits disclosure of or provides authority for an Ethics Board to issue confidential opinions.
The Ethics Board was created under authority of KRS 65.003. Subsection (3) of that statute provides:
Each code of ethics adopted as provided by subsection (1) or (2) of this section, or amended as provided by subsection (4) of this section, shall include, but not be limited to, provisions that set forth:
(a) Standards of conduct for elected and appointed officials and employees;
(b) Requirements for creation of financial disclosure statements, which shall be filed annually by all candidates for the city and county elective offices specified in subsection (1) of this section, elected officials of each city and county government, and other officials or employees of the city or county government, as specified in the code of ethics, and which shall be filed with the person or group responsible for enforcement of the code of ethics;
(c) A policy on the employment of members of the families of officials or employees of the city or county government, as specified in the code of ethics;
(d) The designation of a person or group who shall be responsible for enforcement of the code of ethics, including maintenance of financial disclosure statements, all of which shall be available for public inspection, receipt of complaints alleging possible violations of the code of ethics, issuance of opinions in response to inquiries relating to the code of ethics, investigation of possible violations of the code of ethics, and imposition of penalties provided in the code of ethics.
KRS 65.003 makes no provision for confidential advisory code of ethics opinions. In fact, it presents a statutory scheme of openness and accountability. See KRS 65.003(3)(d).
In 97-ORD-22, we stated:
In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided in KRS 61.878.
Absent a state statute authorizing confidential advisory code of ethics opinions, OMPC cannot enact an ordinance that is repugnant to the statutory scheme set forth in KRS 65.003 and the Open Records Act. Thus, we conclude the OMPC improperly relied upon KRS 61.878(1)(l) as authority for withholding access to the Ethics Board's opinion.
It is the decision of this office that the OMPC improperly denied the request for a copy of the Ethics Board's opinion. A copy should be made available for Mr. Alexieff's inspection.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.